Confident Pluralism: Surviving and Thriving through Deep Difference

Confident Pluralism

Confident Pluralism

Surviving and Thriving Through Deep Difference

John D. Inazu

With a New Preface

The University of Chicago Press

Chicago and London

The University of Chicago Press, Chicago 60637

The University of Chicago Press, Ltd., London

© 2016 by The University of Chicago

All rights reserved. Published 2016.

Paperback edition 2018

Printed in the United States of America

27 26 25 24 23 22 21 20 19 18    1 2 3 4 5

ISBN-13: 978-0-226-59243-5 (paper)

ISBN-13: 978-0-226-59257-2 (e-book)

DOI: https://doi.org/10.7208/chicago/9780226592572.001.0001

The Library of Congress has cataloged the hardcover edition as follows:

Inazu, John D., author.

Confident pluralism : surviving and thriving through deep difference / John D. Inazu.

pages cm

Includes bibliographical references and index.

ISBN 978-0-226-36545-9 (cloth : alkaline paper)

ISBN 978-0-226-36559-6 (e-book)

1. Multiculturalism—United States. 2. Cultural pluralism—United States. 3. Constitutional law—Social aspects—United States. I. Title.

HN90.M84153 2016

305.800973—dc23

2015035279

This paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of Paper).

For Lauren, Hana, and Sam

Contents

Preface to the Paperback Edition

Introduction

Part I. Constitutional Commitments

1 Our Modest Unity:

Rights, Inclusion, and Dissent

2 The Voluntary Groups Requirement:

Rehabilitating the Right of Association

3 The Public Forum Requirement:

Public Spaces, Private Forums, and Parks & Recreation

4 The Public Funding Requirement:

Tax Exemptions, Student Forums, and Government Orthodoxies

Part II. Civic Practices

5 Civic Aspirations:

Tolerance, Humility, and Patience

6 Living Speech:

Rising above Insults and Bullying

7 Collective Action:

Protests, Boycotts, and Strikes

8 Common Ground:

Relationships across Difference

Conclusion

Acknowledgments

Notes

Index

Preface to the Paperback Edition

Are you still confident? In the two years since the publication of Confident Pluralism, this is the question I am most often asked. What about all of the angry and hateful rhetoric in our culture today? What about the irrational and bigoted people-who-aren’t-like-us? Have I really maintained confidence in our shared political experiment?

It is admittedly tough to argue for greater tolerance, humility, and patience—the civic aspirations of confident pluralism—in our current moment. I submitted the manuscript for this book on June 9, 2015. One week later, Donald Trump announced his candidacy for the Republican primary. Since then, the environment surrounding Trump’s campaign and presidency has provided almost daily illustrations of intolerance, pride, and impatience. Many of these have come from the president himself and those who support him; others come from those reacting against him. The rest of us, even if we are not directly involved in writing the playbook of incivility, have too often been dragged into the fray.

At the same time, our national media also confront increased pressures. In late 2016, I participated in a public dialogue with Pastor Timothy Keller and New York Times journalist Nicolas Kristof. Toward the end of the conversation, Kristof reflected: If you think we did a bad job in the last twenty years, as the media collectively, then I’m afraid that we’re going to do an even worse job in the next ten or twenty. And the reason is, essentially, that the business model of traditional journalism has largely collapsed.¹ Kristof noted that media outlets are desperate for audiences and that the best way to build an audience is by reinforcing stereotypes and minimizing nuance. This does not bode well for the future of the media, and it does not bode well for the future of our common self-understanding. And we can only place so much blame on the media. After all, we are the ones who are posting, liking, tagging, and retweeting. We are the ones driven to rage by stories that are misleadingly partisan, and at times deliberately false. We are the ones who sustain an online ecosystem that reinforces caricatures and obliterates charity.

These concerns are not mere abstractions. Shortly after the 2016 presidential election, I gave a public talk on religion and politics. At one point, I made some comments critical of Donald Trump, drawing largely from his own words. I was somewhat startled when a man in the back of the room stood up and started yelling at me: Everything you have said about Trump is a lie. He was the only candidate worthy to be president. The man continued, How much do you really know about the Clintons? I have studied the Clintons for years. They murdered eighty of their friends and associates, and we cannot have a murderer in the White House. I am not easily tongue-tied, but I was unprepared for this kind of engagement: the move from political bias to alternate reality.

Two days later, I experienced the other end of the spectrum. Some students at my university upset about the election began venting on social media. Some of their comments were within bounds; others were not. Several students opined that anyone who voted for Trump was a racist and deserved to die. This was another form of engagement for which I was unprepared: absolutist claims about the character and worth of millions of Americans.

We can tolerate differences of opinion. We can tolerate different interpretations of complicated and contested circumstances. We can even tolerate, at the margins, some hateful people. But if we allow our partisanship and echo chambers to intensify, if dangerous and disingenuous news sources perpetuate falsities that reach broader audiences, then we will soon find it impossible to maintain any kind of shared discourse. We will find ourselves headed toward chaos.

Chaos, Control, or Confident Pluralism

Confident pluralism seeks to avoid chaos, which ignores our differences. It also cautions against control, which suppresses them. We can choose to live between these extremes with the two proposals that I set out in this book: insisting on legal protections that honor difference, and practicing civility in our own relationships across difference. In doing so, we should not pretend that confident pluralism will lead to an idealized society. We must acknowledge that any workable theory of democratic politics will have some degree of chaos and require some amount of control. Constitutional requirements like associational rights and public forums limit the control of public institutions, but they increase the risk of instability. Civic aspirations for our speech and actions give us norms that protect against chaos, but these norms also introduce elements of social control.² These are necessary costs of a functioning democracy.

The legal and the civic dimensions of confident pluralism both require significant reform. When it comes to the law, we need the opportunity to form and sustain groups of our choosing. We need to be able to meet and protest in public spaces. And we need fair access to some forms of government funding to sustain those possibilities. Our current understandings of the right of association, the public forum, and certain kinds of public funding are woefully inadequate. We must insist that the people we entrust to govern us honor basic constitutional principles that protect difference and dissent.

But confident pluralism also depends on you and me—in the everyday decisions we make without the constraints of law, in what we say and in how we interact with others. The shortcomings of our civic practices are ours to overcome. We can be guided in this effort by the three aspirations that I set out in this book: tolerance, humility, and patience. These aspirations provide the footing for the bridges that we can build across difference and the places we can find common ground even when we cannot agree on a common good.

One way to pursue these possibilities is to work toward greater charity with those who differ from us. For many of us, that will require a greater imagination for empathy. I regularly speak to audiences about the aspirations of tolerance, humility, and patience. It is not uncommon to see people nodding in seeming agreement during my presentation only to have some of them reveal their lack of receptivity in private questions or correspondence afterward: Confident pluralism sounds great, but surely it can’t include Muslims. I am not going to tolerate Republicans. Liberals are too smug to be humble. Don’t ask me to be patient with white men. The aspirations of confident pluralism are needed most when our views of others tend toward stereotypes and dismissals.

Tolerance, patience, and humility do not suggest a one-size-fits-all blueprint—different contexts are going to require different applications. And some people are unlikely to be persuaded. Pure ideologues, religious theocrats, and white nationalists will not be interested in confident pluralism. But not every vocal supporter of gay rights is an ideologue, not every conservative Christian or Muslim is a theocrat, and not every Trump supporter is a white nationalist. This book cautions against using these kinds of labels as conversation stoppers that dismiss people rather than engaging with their ideas. The labels become even more destructive when we use them to push others outside the boundaries of our shared civic project.

That’s not to say this country is free of genuinely bad actors—some political partisans really do spend their days working to destroy the lives of the people on the other side of the aisle, violent men and boys really have slaughtered innocent people in mass shootings, and neo-Nazis and the Klan really did march in Charlottesville. These are serious challenges. In particular, the resurgence of white nationalism puts significant pressure on the possibility of confident pluralism. The first chapter of this book makes clear that confident pluralism depends on two premises: inclusion and dissent. Those two premises will inevitably be in some tension with each other. But the version of dissent that denies the basic civic inclusion of others—the version of dissent espoused by white nationalists—is incompatible with the fundamental framework offered here.

The challenge for many of us will be to unqualifiedly reject white nationalism while resisting the urge to lump all of our political opponents into that category or its equivalent. Given the presence of actual self-identified Nazis among us, we would be wise to use the term selectively when we confront people or policies with which we disagree. Not every policy proposed by the other side is pure evil or inhumane or heartless. If we can’t find a way to tone down our rhetoric in the face of painful but commonplace disagreements, we will find those rhetorical resources have lost their meaning when we need them the most.

We can also do better acknowledging those around us who call us to our better selves. These people don’t often make the headlines, but their good and ordinary work performs the extraordinary task of keeping us together. We need to tell each other the stories that highlight this good work, the stories that harness our collective imagination toward a shared future: stories about surprising friendships between people who disagree about important matters; about local partnerships in public education between religious and nonreligious people; and about the everyday acts of neighbors and strangers alike coming together to help victims of natural disasters. In these instances and others, people work across difference and navigate the challenges of pluralism without succumbing to the despair that leads to chaos or the fear that leads to control.

Pluralism Not Relativism

As we work toward finding our way between chaos and control, we need to acknowledge the fact of our differences, or what philosophers sometimes call the fact of pluralism. Recognizing the fact of pluralism does not mean that we think all differences are good. Pluralism is not relativism, and most of us are not relativists. Most of us believe that at least some of our differences matter. We hold some beliefs strongly enough to orient our lives around them.³ Because we believe the answers to some questions matter, and that they matter ultimately for everyone, we do not think that all differences are a good thing.⁴

Most of us would also prefer a world in which others were persuaded to share at least some of our views of right and wrong, good and evil, and ultimate things. When we believe in something of significance, we want others to share that belief. But how others come to share those beliefs matters a great deal. In a deeply divided society that seeks to avoid both chaos and control, we ought to pursue persuasion over coercion most of the time. And the possibility of persuasion requires something like confident pluralism as a kind of mutual nonaggression pact.

The Importance of Institutions

On the other hand, if we are going to realize the possibility of confident pluralism, we are going to need more than a mutual nonaggression pact. We will need to figure out how to practice civic friendship with one another. And that is going to require a great deal of effort. This book refers to tolerance, humility, and patience as aspirations. People can aspire to almost anything.⁵ But aspirations can only take us so far—at some point we will need to see aspirations transformed into virtues. The virtues of tolerance, humility, and patience can only be learned over time—they must be cultivated and sustained by putting our aspirations into practice. With enough practice, we can begin to form habits, dispositions, and, eventually, virtues.

We will not be able to transform aspirations into practices acting alone. We need others to encourage us through common language, stories, and moral traditions. That shared effort is going to require institutions—educational, religious, and civic institutions that bring people together over time for shared purposes. The question of where we will find or build these institutions is increasingly important.⁶ Aspirations can call people to action, but we can only sustain that action if aspirations become virtues.

We need institutions to cultivate virtues, but we also need them to limit our tendencies toward chaos and control. Somewhat paradoxically, we need institutions both to maintain public order and to protect us against those who enforce public order. We need public institutions that contribute to an ordered society, and we need private institutions that can resist those public institutions when they claim too much.⁷ The risk of our public institutions overreaching their moral authority exists regardless of who controls them.⁸ Despite our best intentions, when our people come to power, we convince ourselves that public institutions should impose our moral authority on those who do not share our moral frameworks. For this reason, one of the goals of Confident Pluralism is to strengthen the constitutional protections that constrain the power of public institutions. That effort, if successful, will increase the risk of friction and instability because it allows for a greater degree of moral autonomy (which guards against control). But it nevertheless requires some degree of order (which guards against chaos). I don’t know if we will be able to strike this balance, but I do maintain that it is at least possible.⁹

If you are wondering about the confidence of Confident Pluralism, please read on. Although the challenges may have gotten louder, I am not any less committed to the arguments of this book. To the contrary, I think recent challenges make the book’s arguments even more urgent for us to consider. The relatively modest vision of Confident Pluralism will not resolve all of the differences that divide us, but it may provide space for us to begin to address them. And that is a possibility for which we cannot lose hope.¹⁰

Introduction

It was just a thought experiment.

My law and religion class had turned to the relationship between school funding and the First Amendment’s prohibition on the establishment of religion. The big question in this area of the law is where to draw the line between appropriate and inappropriate government funding of religious schools. The key case is a 1947 Supreme Court decision about whether taxpayer dollars could reimburse parents for the cost of bus fares to transport their children to Catholic schools. The intellectual puzzle has confounded courts for decades: if tax dollars can pay for buses, then what about textbooks, prayer books, and Bibles? Conversely, if they can’t pay for buses, then what about public roads and crossing guards near the schools?¹

Law professors make a living out of posing hypotheticals, and I threw one out to the class. The Catholic Church, as most people know, restricts its priestly office to men. That position puts it at odds with some contemporary norms about gender equality. Suppose that a city government provided crossing guards to all of its public and private schools because it had good evidence that fewer schoolchildren would be hurt or killed with those guards in place. The guards cost taxpayer dollars. Could the city refuse to pay for guards at the Catholic school because of the school’s views about gender?

I had expected some back-and-forth, but I was surprised when one student dug in: Yes, absolutely. The school has chosen to place itself outside of the acceptable bounds of society—it is not entitled to any services of the state. The state need not ‘subsidize’ such institutions. I pressed further: What if the school catches on fire? Can the fire department refuse to answer the call? Yes, the student responded. The school has made a choice. It can try to put out the fire on its own. Well, I asked, what if there is an active shooter in the school? Should the SWAT team just stand by and wait for the shooter to finish up? The student replied, I don’t see why not.

To